Volume 42 — Colorado Reports

<p>1. Brokers — Real Property — Right to Commissions.</p> <p>Plaintiff, a real estate broker, called the attention of a •church officer to defendants’ city lots, telling him the price, but the church refused to make the purchase through such broker, and purchased through another. Held, that plaintiff was not the efficient and procuring cause of the sale, and so cannot recover a commission. — P. 3.</p> <p>2. Same.</p> <p>Where an owner of land openly places it for sale with rival real estate agents, and one of them, the first to make the attempt, makes a sale to a customer to whom the other had unsuccessfully tried to sell it, the latter is not entitled to commission. — ■ P. 5.</p>

<p>1. Appellate Practice — Verdict—When Disturbed — General Rule and Exceptions.</p> <p>The general rule that a verdict will not be disturbed on review, applies where there is a substantial conflict .in competent testimony bearing on the issues which it is the province of the jury to determine, and it does not apply where the verdict is so manifestly against the weight of the testimony that it must have been the result of passion or prejudice, or where there is no testimony whatever to support the verdict. — P. 7.</p> <p>2. Practice in Civil Actions — Husband and Wife — Alienation of Affections — Evidence.</p> <p>In an action against a father-in-law for alienation of the affections of a husband, alleged statements of the husband that his father did not want him to live with the plaintiff, and that he was going to leave her, and a letter from the husband to plaintiff’s attorney stating that he had come to his senses, that he was going to live with his wife, and wanted to right the wrongs he had done her, are not competent to show interference by the father, but only admissible to show the effect of such interference, if any was shown, with respect to the causes which prompted the son to separate from her. — Pp. 9, 15.</p> <p>3. Same.</p> <p>In an action against a father-in-law for the alienation of a husband’s affections, evidence that defendant employed counsel to defend the husband in an actipn for separate maintenance is not admissible, in the absence of a showing that the defendant interfered in their married affairs; but, if there was evidence of such interference, the employment of counsel might be regarded as tending to prove the allegations in the complaint. —P. 16.</p> <p>4. Same — Sufficiency of Evidence.</p> <p>In an action for alienating the affections of plaintiff’s husband, evidence reviewed and held insufficient to sustain a verdict for plaintiff. — P. 17.</p> <p>5. Appellate Practice — Assignments of Error — Not Included in Abstract.</p> <p>Although the'usual practice is to include the assignments of error in the abstract, it is a sufficient compliance with rule 11 of the supreme court, requiring an appellant to assign errors in writing at the time of filing the transcript of record, to include such assignments in the opening brief of counsel filed in the case. — P. 17.</p>

<p>Appellate Practice — Findings Sustained by Evidence — Not Disturbed on Appeal.</p> <p>A finding of tlie court sustained by sufficient competent evidence, cannot be disturbed on appeal. — P. 19.</p>

<p>1. Brokers — Loans—Commissions—When Earned.</p> <p>Where a broker, employed to procure a purchaser or a lender, obtains a purchaser ready, willing, and' able to purchase at the price fixed, or a lender ready, willing, and able to lend the amount desired, and on the terms agreed on, he has earned his commission, though the transaction is not completed because of the wrongful conduct of the principal. — P. 23.</p> <p>2. Same.</p> <p>Defendant employed a broker upon an agreed commission to procure a loan on real estate; and the latter procured a blank application for a loan, which defendant filled out. The application stated that defendant held the undisputed title -to real estate in fee; that the proposed mortgage was to be a first lien thereon; and that he did not owe any money to mechanics or others for work done or material furnished thereon. An agent of the proposed lender notified the broker that the loan was accepted, but the proposed lender, on ascertaining that buildings had recently been erected on the property, and that the time for filing liens had not expired, demanded that a bond should be given to protect the lender against liens, which defendant refused to give. Also, after-the application had been made, defendant conveyed an interest in the property to a third person, who refused to sign the bond. Held, that, although the loan was not made for either of these reasons, the broker was entitled to his commission.— P. 25.</p>

<p> Appeal from the District Court of the City and County of Denver. </p> <p> Hon. Frank T. Johnson, Judge. </p> <p>Action by Hannah E. Helm against Alice M. Brewster and Albert W. Brewster. From a ¡judgment for defendants, plaintiff appeals.</p>

Hon. C. 8. Essex, Judge. Edward J. O’Brien was convicted of breaking and entering a freight car and stealing whisky therefrom, and he brings error.

<p>1. Railroads — Damages—Accident at Crossing — Evidence.</p> <p>In an action against a railroad company for injuries to a traveler at a crossing, evidence reviewed and held sufficient to sustain a finding that defendant’s servants were negligent in failing to stop the train after discovering plaintiff’s peril. — P. 46.</p> <p>2. Damages — Personal Injuries — Actions—Pleading and Proof.</p> <p>In an action for personal injuries caused by negligence, evidence of injuries to plaintiff’s lungs is admissible under a complaint alleging injuries to other organs, and a -general allegation that plaintiff received great personal injuries, without specifying their location. — P. 47.</p> <p>3. Appellate Practice — Practice in Civil Actions — Admission of Evidence — Harmless Error.</p> <p>Where the evidence in an action for injuries at a crossing showed that there was no obstruction between a runaway horse on which plaintiff was riding and the cab of defendant’s engine, and defendant’s fireman testified that he saw the situation but did not think the horse was running away until it was too late to stop the train, defendant was not prejudiced by the court allowing one of plaintiff’s witnesses to testify that, in the position the fireman occupied, he could have seen and known that the horse was running away, although the testimony might be objectionable as being merely a conclusion or opinion. — P. 48.</p> <p>4. Same.</p> <p>Where there was evidence that defendant’s train, which injured plaintiff at a crossing, was not stopped as soon as it might have been, and the engineer testified that the shortest distance in which such a train could be stopped was about a train length, the defendant was not harmed by the court allowing the engineer to be asked on cross-examination, “If you can stop a moving train in the length of a train, and you whistled down brakes and applied the air three or four telegraph poles south of the crossing, how do you account for the fact that the train did not stop until the train got three or four telegraph poles north of the crossing?” although the ultimate fact of whether the train was stopped within a reasonable time and distance was one for the jury, since, in the light of this evidence, such a question was pertinent; moreover, his answer, “I think I said about a train length, more or less,” could not have harmed defendant. — P. 49.</p> <p>5. Appellate Practice — Objections Raised First on Appeal.</p> <p>Objections to evidence cannot be raised for the first time on appeal. — P. 50.</p> <p>6. Practice in Civil Actions — Witnesses—Impeachment—Inconsistent Statements.</p> <p>Statements made by members of a train crew some time after the accident, although not part of the res gestae, are admissible for the purpose of impeachment when inconsistent with their testimony. — P. 50.</p> <p>7. Same.</p> <p>The statement out of court of the conductor of a train as to what the crew thought about the plaintiff’s peril, made in the presence of the other members of a train crew and not denied by them, is admissible to affect their inconsistent testimony, although he did not see plaintiff’s situation. — P. 50.</p>

Hon. J. W. Swisher, Judge. Action by Martha Curtain against L. L. Squires and L. Gr. Squires. From a judgment of the county court for plaintiff, on appeal from a similar judgment in the justice court, defendants appeal.

<p> Error to the District Court of the City and County of Denver. </p> <p> Hon. Booth M. Malone, Judge. </p> <p>Action by Thomas Scattergood against The Weir Investment Company and A. M. Ghost. From a judgment for plaintiff, defendants bring error.</p>

Wm. P. Seeds, Judge. Proceedings for tire probate of the will of Jennie Billingsley, deceased, by Mattie Snodgrass, named as executrix- therein, in which James Clarence Billingsley appeared as contestant, continued after his death by Curtis J. Smith, administrator. Prom a judgment refusing probate, proponent appeals.

<p>1. Appellate Practice — Findings. Based on Conflicting Evidence.</p> <p>Where a conflict in the testimony is resolved by the court in favor of one of the parties, such finding cannot be disturbed on appeal. — P. 73.</p> <p>2. Vendor and Vendee — Contract of Sale — Evidence.</p> <p>Plaintiff offered certain real estate to defendant for $1,600, and defendant made a memorandum of the price, and replied: “You will hear from me,” which statement was again made when later declining an invitation to examine the property. Defendant afterwards wrote plaintiff, asking if he would take $1,200 net, adding: “I think I can make a deal at that figure”; to which plaintiff answered that $1,600 was the least price; and to this defendant replied: “I do not know that I can make a deal at that figure, but will try my best.” Later, defendant requested the plaintiff to send a deed, made out in blank as to the consideration and grantee, with an abstract of title, to a bank, and stated that the bank would send plaintiff $1,600, cash, stating that he desired the blanks so that he could fill in the “name and amount to whom I sell.” Held, that such facts indicate that defendant was endeavoring to sell the land as broker, and do not show a contract to purchase, for himself. — P. 73.</p> <p>3. Appellate Practice — Prejudice—Ruling on Evidence.</p> <p>Where it affirmatively appears that the admission of incompetent evidence was not prejudicial, such ruling does not constitute reversible error. — P. 74.</p>

Appeal from the District Court of El Paso County. Eon. Wm. P. Seeds, Judge. Action by tbe city of Colorado City against the city of' Colorado Springs. From a judgment for plaintiff, defendant appeals.

<p>Railroads — Regulation of Station Grounds — Discrimination as to Hackmen.</p> <p>A railroad or depot company owning a strip of land at a passenger station for the accommodation of travelers on railroads may lawfully exclude some hackmen or carriers of haggage from using it as a hack stand for the purpose of plying their vocation, they being allowed free access to deliver outgoing and receive incoming passengers, while it gives to others permission to do so. — P. 94.</p>

Hon. L. B. Gibson, Judge. Action by Isadore Leibowitz against M. Goldberger. From a judgment in tbe. county court for plaintiff, on appeal from a like judgment in the justice court, defendant appeals.

Appeal from the District Court of the City and County of Denver. Eon. F. T. Johnson, Judge. Action-by T. S. Provolt and E. J. Cavanaugh, co-partners as The Employes’ Credit Company, against the Chicago, Burlington & Quincy Railroad Company: From a judgment for plaintiffs, defendant appeals.

Hon. John I. Mullins, Judge. Action by Frederick A. Williams, executor of the estate of Caroline M. Rice, deceased, against the Fidelity & Deposit Company of^ Maryland. There was a judgment for defendant, and plaintiff brings error.

<p>1. Mines and Mining — Vendor and Vendee — Bond to Convey— Assignment.</p> <p>A grantee in a bond for a deed becomes, on tbe assignment by him of an interest in tbe bond to a third person, a trustee of sucb interest in favor of tbe third person, and, on tbe conveyance under tbe bond of tbe legal title to him, be bolds tbe same for tbe benefit of sucb third person. — P. 126.</p> <p>2. Same — Bona Fide Purchasers — Notice.</p> <p>The owner of an undivided fourth interest in a mining claim executed a bond for a deed to a third person, who assigned a half interest in tbe bond. Tbe bond and assignment were recorded and sucb third person obtained a conveyance of tbe legal title. Held, that those who succeeded to tbe third person’s title took tbe same subject to tbe rights of the assignee, and held tbe legal title in trust for him. — P. 127.</p> <p>3. Mines and Mining — Tenancy in Common — Mutual Rights and Liabilities — Enjoyment and Use of Property.</p> <p>One tenant in common of a mining claim, who, without the consent of his co-tenants incurs expenses in prospecting, cannot demand contribution from them; but a tenant operating a mine may, when called on to account for the profits, set off as against a non-operating tenant, the cost of the necessary improvements, on his showing that the improvements were necessary and enhanced the value of the common property. — P. 129.</p> <p>4. Mines and Mining — Tenancy in Common — Care of Property— Services of Co-Tenant — Compensation.</p> <p>Tenants in common, in the absence of a special agreement or mutual understanding to that effect, are not entitled to compensation from each other for services rendered in the care and management of the common property. — P. 129.</p>

<p>1. Appellate Practice — Sufficiency of Record — Separate Maintenance — Refusal to Dissolve Temporary Injunction — Final Judgments.</p> <p>Alleged error in omitting to dissolve a temporary injunction will not be reviewed where the folios of the record to which the supreme court’s attention is directed by the assignments of error do not show a motion to dissolve, and no such motion is found in the abstract; moreover, it is only the final judgment of a trial court that will be reviewed. — P. 132.</p> <p>2. Husband and Wife — Separate Maintenance — Courts—Jurisdiction.</p> <p>The district court has jurisdiction of a suit by a wife for separate maintenance, and she is not compelled to resort to the criminal law to enforce support nor to bring an action for divorce.- — P. 133.</p> <p>3. Appellate Practice — Harmless Error — Instructions Irregularly Numbered.</p> <p>A party cannot complain because instructions are irregularly numbered, where no possible prejudice resulted to him, nor can such alleged error be reviewed when raised for the first time on appeal. — P. 133.</p> <p>4. Appellate Practice — Instructions—Insufficient Objection Below.</p> <p>An objection that an instruction directed particular attention to defendant and his testimony will not be reviewed where the general exception to the instruction did not call the trial court’s attention to such objection. — P. 134.</p> <p>5. Appellate Practice — Verdict—Objection—First Made on Appeal.</p> <p>An objection first made on appeal that one verdict was unsigned, and that another was improperly signed, will not be considered where objector’s counsel was present when the verdicts were received, and made no objection. — P. 134.</p> <p>6. Husband and Wife — Separate Maintenance — Decree on Uncorroborated Testimony.</p> <p>A wife may be awarded a decree for separate maintenance on her uncorroborated testimony. — P. 135.</p> <p>7. Husband and Wife — Separate Maintenance — Wife’s Means— Effect.</p> <p>That a wife has some separate means does not preclude her from bringing an action for separate maintenance. — P. 135.</p> <p>8. Husband and Wife — Separate Maintenance — Harmless Error —No Order Regarding Child.</p> <p>In a suit for separate maintenance, the court’s failure to make some order regarding an infant, on awarding th.e wife a decree, was not prejudicial to the husband. — P. 136.</p> <p>9. Husband and Wife — Separate Maintenance — Pleading—Cross-Complaint for Divorce — Proof.</p> <p>On a complaint for separate maintenance and a cross-complaint for divorce, both founded on alleged cruelty of the adverse party, the wife was not required to repeat the allegations of cruelty contained in her complaint in her answer to the cross-complaint, in order to admit proof of them in defending against the cross-complaint.- — P. 137.</p> <p>10. Appellate Practice — Admission of Testimony — Insufficient Record.</p> <p>The alleged erroneous admission of evidence will not be reviewed where such evidence is not set forth in the abstract, and the folio of the record where it may be found is not given.— P. 137.</p> <p>11. Judgments — Entry—Time For.</p> <p>Where a trial court has made findings and pronounced judgment, the clerk may enter the decree as of that date, although the form thereof is not prepared until long after, and the judge may date the decree as of the time announced. — P. 138.</p> <p>12. Husband and Wife — Separate Maintenance — Decree—Property.</p> <p>A decree awarding a wife alimony until she and her husband are reconciled to live together again, is not objectionable on the ground of leaving the reconciliation entirely in her hands. — P. 138.</p> <p>13. Appellate Practice — Objection Not Urged Below.</p> <p>On appeal from a decree awarding temporary alimony, the husband cannot complain that the decree leaves the question of reconciliation entirely in the wife’s hands, where it does not appear that he proposed a form of decree, or that such specific objection was made below. — P. 138.</p> <p>14. Husband and Wife — Separate Maintenance — Decree—Costs.</p> <p>On awarding a decree for separate maintenance, it is within the court’s discretion to withhold from the husband the benefits he is entitled to thereunder until he pays the costs. — P. 139.</p>

<p>1. Water Rights — Appropriation — Abandonment — Burden of Proof.</p> <p>In seeking to enjoin the diversion of water, on the ground of an alleged abandonment of the priorities awarded defendant by a prior statutory decree, the burden of proof is on , .plaintiff. —P. 143. . '</p> <p>2. Water Rights — Abandonment—Words and Phrases.</p> <p>Abandonment, as applied to water rights, is made up of two elements, act and intention; and a non-user alone, at least short of the period of the statute of limitations, is not sufficient to prove an abandonment; but non-use continued for a considerable time, coupled with other acts showing an intention on the part of the owner not to resume or to repossess himself of the thing whose use he has relinquished, may constitute an abandonment. — P. 143.</p> <p>3. Water Rights — ’Appropriation — Adjudication of Priorities— Res Adjudicata.</p> <p>A statutory decree establishing imiorities to the use of water for irrigation, is res adjudicata as to the volume of water awarded to a particular ditch, and cannot be attacked collaterally — P. 144.</p> <p>4. Same — Abandonment of Rights.</p> <p>A statutory decree establishing priorities to the use of water for irrigation, confers no new rights, but is merely evidence of pre-existing rights, which may be lost by subsequent abandonment. — P. 147.</p> <p>5. Same — Actions to Protect Rights — Evidence..</p> <p>Although evidence of non-user and similar acts occurring before the entry of a decree of priorities to the use of water is improper for the purpose of proving the owner’s right to use a less volume of water than that decreed to him, as well as being improper for the purpose of showing the element of non-user in a subsequent abandonment, yet where there is sufficient legal evidence as to the element of non-user subsequent to the decree, evidence of non-user and similar acts by such owner before the decree is proper, and not prejudicial, for the purpose of showing his intent in not using what was awarded to him. — P. 147.</p> <p>6. Water Rights — Injunction—Defenses—Evidence.</p> <p>Where a senior appropriator of water seeks to enjoin a junior appropriator from diverting the same, and the defendant seeks to avoid such on the ground that, if the diversion is restrained the plaintiff will derive no benefit therefrom, such defense must be established by clear and satisfactory evidence.— P. 149.</p> <p>7. Appellate Practice — Conclusiveness of Findings.</p> <p>Where the evidence is legally sufficient to uphold the finding of the trial court, such finding will not be disturbed on appeal. — P. 150.</p>

<p>1. Appellate Practice' — Verdict—Based on Conflicting Evidence.</p> <p>The rule that a verdict Based on conflicting evidence will not be disturbed on appeal, does not apply where the- case is-not submitted under proper instructions, nor where an issue has been submitted to the jury which is not in the case. — P. 153.</p> <p>2. Practice in Civil Actions — Instructions—Not Applicable to Issues.</p> <p>An instruction which submits to the jury a question not in the case, is erroneous. — P. 154.</p> <p>3. Contracts — Default—Rescission—Waiver.</p> <p>A party who has the right to rescind a contract because of the default of another to such contract, must at least act with a reasonable degree of promptness after knowing of such default, or he waives his right to rescind for such cause. — P. 154.</p> <p>4. Master and Servant — ‘Contract of Employment — Abandonment — Rescission—Waiver.</p> <p>Where defendant permitted plaintiff to resume work under a contract of employment after he had been absent for an unreasonable time, and failed to notify plaintiff that he elected to terminate the contract because of such default, and failed to accept plaintiff’s offer to permit defendant to obtain another to finish the work, he thereby waives his right to rescind the contract or take advantage thereof. — P. 155.</p> <p>5. Same — Practice In Civil Actions — Master and Servant — Contracts of Employment — Instructions—Omission of Material Facts.</p> <p>In an action for breach of a contract of employment, it was contended that there was a question for the jury as to whether plaintiff had abandoned the contract 'by his absence from the work for an unreasonable time, and whether he had relieved defendant by notifying him that he was at liberty to employ some one else; but there was evidence that defendant had waived his right to insist on abandonment and had not accepted plaintiff’s offer to rescind the contract. Held, that instructions on the first proposition, omitting the question of waiver and, as to the second, the question whether defendant had accepted plaintiff’s offer to release him from the contract, were erroneous, under the rule that, when the court instructs on what state of facts a verdict must be returned against a party, the instructions must include all the facts material to the right of such party. — P. 155.</p> <p>6. Same — Request to Charge.</p> <p>Where, in an action for breach of a contract of employment, there was a dispute as to whether the contract was for work by the shift only, or for a definite amount of work, an instruction on the question of abandonment of the work, which failed to require the jury to find that the contract was for a definite amount of work in order to find for plaintiff, was properly refused. — P. 155,</p>

<p>1. Insurance — Conditions in Policy — Breach by Tenants — Unknown by Landlord — Known by Agents. „</p> <p>Defendants insured plaintiff’s building, the policies conditioned to be void if any illuminating gas or vapor be generated in the building, or if any benzine, gasoline, petroleum, or certain of its products be allowed on the premises, unless provided for by special indorsement thereon, and the policies provide that no representative of the insurers had power to waive such conditions, except such waiver be written on or attached thereto. Tenants of the buildings, subsequently insured their stock of goods in one of defendant’s companies, the insurance being placed by the same agents, and the latter, without plaintiff’s knowledge, issued to the tenants a permit to install a device for the generation of gasoline vapor, which was done without plaintiff’s knowledge, and the building was subsequently damaged by fire and explosion. Held, that the installation and use of the gasoline plant with the consent of defendant’s general agent did not render plaintiff’s policies void, as such knowledge is the knowledge of defendants, and constitutes a waiver of the condition in the policy. — P. 162.</p> <p>2. Insurance — General Agents — Power to Waive Conditions.</p> <p>Where insurance agents are furnished with blank policies signed by the president and secretary of the insurance fcompany, with authority to fill out the same, solicit insurance, receive applications and premiums, issue, countersign, renew and cancel policies, they are general agents, and have power to modify a contract of insurance, although it provides that no agent shall have power to waive any restrictive clauses, except where expressly authorized, and in such cases to be waived by writing on or attaching the waiver to the policy. — P. 162.</p> <p>3. Same — Permit to Tenants — Knowledge of Agents — Presumptions.</p> <p>Where a permit is issued to tenants by insurance agents to do that which is forbidden in policies issued by the same agents to the landlord a few weeks before, it will be presumed, in spite of such agents’ testimony to the contrary, that they had in mind at that time the policies previously issued to the landlord. — P. 164.</p> <p>4. Insurance — Policies—Waiver of Forfeiture Clause.</p> <p>Provisions in an insurance policy rendering it void if specified articles are kept on the premises, are for the benefit of, and may be waived by, the insurer. — P. 166.</p> <p>5. Insurance — Policies — Knowledge of Breach of Condition— Action of Insurer.</p> <p>Where an insurer has knowledge of a breach of condition in a policy, but continues to treat it as operative and valid, the policy will continue in full force, even though the forfeiture takes place entirely independent of any agency of the insurer or its representative.1 — P. 167.</p> <p>6. Insurance — General Agents — Powers.</p> <p>A general agent’s power to make and rescind contracts implies the power to modify the same. — P. 168.</p> <p>7. Insurance — Policies—Breach of Condition — Act of Tenant— Knowledge of Landlord — Knowledge of Insurer.</p> <p>Where an act forbidden by a landlord’s insurance policy is done by his tenant, without his knowledge and consent, but with the knowledge and consent of the insurer, the landlord may enforce the policy. — P. 168.</p> <p>8. Insurance — Actions on Policies — Conditions Precedent-Reformation of Policy.</p> <p>Where, in an action on an insurance policy, the insurer pleads forfeiture for violation of a restrictive clause, the insured may plead waiver or 'estoppel without first having the contract reformed so as to embody the waiver. — P. 169.</p> <p>9. Insurance — General Agents of Two Companies — Effect of Notice to Agents.</p> <p>Where two insurance companies represented by the same general agents are in reality one and the same company, permission by such agents, acting for one company, to a tenant to keep articles on the premises forbidden by his policy on goods in the building, amounts to notice to the other company; and, also, amounts to a waiver by such company of a condition in a policy issued forfeiting the policy if such articles are kept on the premises. — P. 170.</p> <p>10. Insurance — “Estoppel in Pais” — Waiver.</p> <p>Estoppel in pais is recognized in law as well as in equity, and is employed in insurance law as synonymous with waiver.— P. 171.</p> <p>11. Insurance — Causes of Loss — Fire—Explosion—Precedence— Question of Fact.</p> <p>Under a fire insurance policy providing that the insurer shall not be liable for loss by explosion, if the fire precedes an explosion and the latter is an incident of the former and caused by it, the insured may recover for his entire loss; but, if the explosion precedes the -fire, and is not caused by it, the insured can only recover for the loss by fire; and the question of precedence is one of fact. — P. 172.</p> <p>12. Insurance — Action on Policy — Burden of Proof — Cause of Loss.</p> <p>When assured has shown the execution of the policy, the loss and amount thereof, and notice to the insurer, the burden is on the insurer to prove that the loss,. or a part thereof, is within one of the exceptions in the policy. — P. 172.</p> <p>13. Insurance — Action on Policy — Evidence to Sustain Finding — Cause of Loss.</p> <p>In an action on an insurance policy, the evidence considered and held sufficient to sustain the finding of the court that a fire preceded the explosion, and was the .cause of the explosion.— P. 173.</p> <p>14. insurance — Loss by Explosion — “Fire”—Words and Phrases.</p> <p>The word “fire” referred to in a policy rendering an insurer liable for the damage caused by an explosion, under a policy excluding explosions as cause of loss, must be an actual fire according to the common use of the term, and not a blaze produced by lighting a match, gas jet, or lamp. — P. 174.</p> <p>15. Insurance — Actions on Policies — Extent of Damage — Burden of Proof.</p> <p>Where a policy of insurance excludes damages caused by explosion, and the insurer in an action thereon proves - that an explosion preceded the fire, the burden is on plaintiff to prove the extent of the damages suffered from the subsequent fire.— P. 176.</p>

<p>Former Opinion Followed.</p> <p>The judgment in this case is affirmed in accordance with Alamosa Creek Canal Co. v. Nelson, ante, p. 140.</p>

Hon. James A. Orr, Judge. Action by E. L. Wilson against Thomas Eimmer. From a judgment for plaintiff in the county court on appeal from a similar judgment in the justice court, defendant appeals.

<p>1. Water Rights — Joint-Stock Companies — Articles of Association — Membership.</p> <p>Although it be admitted that an agreement has the effect of forming a joint-stock association, still, in determining the ' rights of members to withdraw, such agreement must be considered in order to determine their respective rights and duties. — P. 191.</p> <p>2. Same — By-Laws.</p> <p>Articles of association provided for regular meetings, election of officers, and their duties, that “the by-laws can be amended only by a two-thirds majority of all the stock held”;- and such by-laws were duly recorded. Held, that no member or members owning less than two-thirds of the stock could withdraw therefrom while continuing to hold his or their interest in the property which the association was organized to manage, except the association be dissolved by a two-thirds vote, or by a court of equity, as such withdrawal would necessarily work a dissolution of the association, and the abrogation or amendment of the articles, in direct violation of their provisions. — P. 194.</p>

<p> Appeal from the District Court of the City and County of Denver. </p> <p> Hon. F. T. Johnson, Judge. </p> <p>.Action in mandamus by George A. Suffa. against N. 0. Merrill, secretary of Tbe Big Five Tunnel, Ore Reduction and Transportation Company, The Maine Mining Company, The Belman Mining Company, The Edgar Consolidated Gold Mining Company, The Columbia Mines Company, The Dew Drop Mining Company, The Ni Wot Mining Company, and The Timberline Mines Company, to compel respondent to give petitioner access to corporate books. From a judgment awarding a peremptory writ, respondent appeals.</p>

<p>1. Quieting Title — Corporation—Possession Through Officer— Statutory Construction.</p> <p>A director or manager of a corporation cannot acquire a hostile possession of its property, of which he is in charge and control as such manager, so as to prevent it from maintaining an action to quiet title under Mills’ Ann. Code, § 255, which provides that an action may be brought by any person in possession by himself or his tenant of real property against any person who claims an estate therein adverse to him,, for the purpose of determining such adverse claim. — P. 208.</p> <p>2. Same — Equitable Title.</p> <p>Where the title claimed by plaintiff corporation was purely 'equitable, being based upon an oral contract between it and defendant, who was one of its directors, it had a right, although out of possession, to maintain an action under Mills’ Ann. Code, § 255, to quiet its title. — P. 208. -</p>

Hon. Peter L. Palmer, Judge. Action by Margaret Hughes against Carlton M. Kershow, J. ‘Henry Kershow as the guardian and trustee of Carlton M. Kershow, J. Henry Kershow as the executor of Max Howard Kershow, deceased, and W. M. Scott as administrator of Paul T. Hughes, deceased. Prom a judgment for defendants, plaintiff appeals.

<p>1. Constitutional Law — Cities and Towns — Damages—Statutes Requiring Notice in Personal Injuries — Validity.</p> <p>Municipal corporations organized under the Colorado general municipal incorporation act, have such rights and powers, and are subject to such obligations and liabilities, as the general assembly sees fit to give or impose; and, for injuries received upon their streets, the general assembly may, or may not, require them to respond in damages; and, in this connection, may make it a condition precedent to the attaching of such liability, or the right to sue therefor, that notice he given the city of such injury within a specified time. — P. 221.</p> <p>2. Same.</p> <p>The act of 1903 (Sess. Laws 1903, p. 457), and the act of 1899 (Sess. Laws 1899, p. 365), requiring notice to be given a city within a specified time of personal injuries received, before an action may be brought to recover damages therefor, are valid. — P. 222.</p> <p>3. Same — Act Not Retrospective — General Saving Statute — Statutory Construction.</p> <p>Plaintiff was injured by falling on defendant’s sidewalk, about thirty days prior to the law of 1903 (Sess. Laws 1903, p. 457) going into effect, and, after said law had become effective, gave notice to the city of her alleged injuries in accordance with the requirements of said act. Held, that such injury having been received prior to such law taking effect, plaintiff should have complied with the notice required by the act of 1899 (Sess. Laws 1899, p. 365); and, upon failure so to do, the city was not liable, notwithstandifig the general saving statute of 1891 (Sess. Laws 1891, p. 366), since §11, art. 2, Colo, const., operates as a saving clause incorporated into the act of 1903, even though the latter act repealed the act of 1899. — P. 223.</p>

<p>Practice in Civil Actions — Contribution—Money Advanced for Use of Another — Promise, Express or Implied — Evidence —Nonsuit.</p> <p>Plaintiff and defendant were interested in the' S. Mining-Company, which .became heavily indebted to divers people; and, defendant authorized plaintiff to compromise such indebtedness for about two-fifths, and in a letter made the following suggestions: “If you meet B. or the banker, try and get that debt out of the way at $1,500. In drawing for that $1,500, of course, a proper satisfaction of judgment must accompany draft * * * In settling debts you might promise bank and others on honor to pay balance if you ever get it out of the affairs of the company; whether this will help you in effecting settlement I don’t know, but it might.” Plaintiff later entered into an agreement with the bank referred to wherein it was recited that plaintiff was indebted to bank in the sum of $3,825, of which he paid $1,525, and he agreed to pay the balance of $2,300 out of the sale of property other than that in which he and defendant were interested. Defendant furnished the $1,525, and later plaintiff sold the individual property, and paid the balance of the indebtedness to the bank, and then brought an action against defendant for half of said amount. Held, that a motion for a non-suit was properly sustained where the evidence failed to show a promise, either express or implied, except the expression used in the letter; and that, if such expression amounted to a direction, it would have been necessary for plaintiff to have executed it in terms, that is “to promise the bank and others on honor to pay the balance if you ever get it out of the affairs or business of the San Juan Company.” — P. 227.</p>

<p>1. Husband and Wife — Failure to Support Wife — Statutory Construction — Repeal by Implication.</p> <p>Section 3021, Mills’ (Rev.) Stats., providing for the punishment of a man “who neglects to provide proper food, clothing, shelter or care in case of sickness, for his wife or minor child,” does not by implication repeal 3 Mills’ (Rev.) Stats., 1412a, providing for the punishment of a man who “willfully neglects, fails, or refuses to provide reasonable support and maintenance for his wife or minor children.”- — P. 230.</p> <p>2. Same — Prosecution—Sufficiency of Information.</p> <p>An information under 3 Mills’ (Rev.) Stats., § 3021b, alleging that defendant “did willfully fail, refuse and neglect to provide proper food, clothing and shelter and care in case of sickness for his wife,” is fatally defective, in that it fails to allege that defendant’s wife was sick at the time it is charged he failed to provide for her. — P. 231.</p>

<p> Appeal from the District Court of the City and County of Denver. </p> <p> Hon. Frank T. Johnson, Judge. </p> <p>Action by Saide Meiss Bashor against Lillian N. Tanquary. From a judgment for plaintiff, defendant appeals.</p>

Hon. John T. Shumate, Judge. Proceedings for the allowance of the claim of James Beattie against the estate of John P. Thomas. Prom a judgment of the county court disallowing the claim, claimant appealed to the district court, where judgment was rendered in his favor, and Thomas G. Thomas, administrator, appeals.

Hon. James E. Garrigues, Judge. Information in the nature of quo tvarranto hy the people on the relation of Oscar A. Johnson, a resident, citizen, elector and taxpayer of the city of Boulder, against Isaac T. Earl, Oliver P. Clark, Houston Jones, Guy A. Adams, Albert Lawrence, A. E. Collins, A. S. McCoy, A. C. Yan Deren, E. D. Webb, H. W. Allen and Frederick White. From a judgment of dismissal on sustaining demurrers to the information, relator appeals. Decision en banc.

Hon. Peter L. Palmer, Judge.' Mandamus by Robert P. Rollins against the Agricultural Ditch Company, a corporation, Charles Hallaclc and Henry Lee, to compel respondents to transfer certain of the company’s capital stock to relator, and to deliver to him during that irrigation season a quantity of water. From a judgment awarding the peremptory writ, respondents appeal.

Appeal from the District Court of Fremont County. Hón. M. 8. Bailey, Judge. Action by tbe Elgin Jewelry Company, a copartnership composed of T. 0. Loveland and J. L. Records, against Mrs. H. Wilson. From a judgment for defendant, plaintiff appeals.

<p> Appeal from the District Court of the City and County of Denver, </p> <p>lion. Samuel L. Carpenter, Judge.</p> <p>Action by D. A. Cannon against Ophelia C. Bales. From a judgment for plaintiff, defendant appeals.</p>

<p> Error to the County Court of Weld County. </p> <p> Hon. Charles E. Southard, Judge. </p> <p>Action by Tlie Scott Supply and Tool Company, a corporation, against John P. Roberts. Prom a judgment for defendant, plaintiff brings error.</p>

<p> Error to the District Court of La Plata County. </p> <p> Hon. James L. Russell, Judge. </p> <p>Action by Thomas D. Burns, Mary Callen, A. J.</p> <p>Buchanan, J. W. McCaw and Edgar Buchanan against Thomas A. Kerr and Erwin W. Mead. From the decree, defendant Kerr brings error.</p>

Ron. J. Mach Mills, Judge. Action by the city of Ft. Collins against Marie La Fitte. _ From a judgment in police court for plaintiff, and from a like judgment in the county court, defendant appeals'.

Original Proceeding in Certiorari. Certiorari by John L. Gray to review the action of the district court of the ninth, judicial district and the Honorable John T. Shumate, judge thereof, P. W. Adams, sheriff, and Charles W. Taylor, and praying for a writ of prohibition against the appointment of a special prosecutor to act as district attorney in place of petitioner, who was alleged to be prejudiced. Decision en banc, all the justices concurring.

<p>1. Master and Servant — Death of Servant — Negligence—Contributory Negligence — Evidence.</p> <p>In an action for the death of an employee killed while descending a man-way in a mine, evidence reviewed and held sufficient to support a finding that decedent was killed by falling rock because of the negligence of the mine owner to properly timber the way; and to justify a finding that deceased was not guilty of contributory negligence. — P. 308.</p> <p>2. Same.</p> <p>In an action for the death of an employee caused by alleged negligence of employer, it is not necessary to show by eye-witnesses that decedent came to his death because of the defendant’s negligence and that deceased was free from contributory negligence, since these matters may be proven by showing circumstances from which their existence may fairly and logically be inferred. — P. 309.</p> <p>3. Same — Admissibility of Evidence.</p> <p>In an action for the death of an employee struck by falling rock while descending a man-way in a mine, the testimony showed that the employer knew that rock was frequently slipping and falling down the way, and that from time to time after rock had fallen it would re-timber the places which appeared to be most dangerous. Held, that evidence of the proper manner of timbering the way to make it reasonably safe is admissible to show that the employer was negligent in failing to use ordinary care to make the place reasonably safe. — P. 309.</p> <p>4. Same.</p> <p>In an action for the death of an employee struck by falling rook while descending a man-way in a mine, evidence of a previous accident, occurring shortly before the accident resulting in decedent’s death, is admissible to show knowledge on the part of the employer that the existing conditions in the way were dangerous. — P. 310.</p> <p>5. Practice in Civil Actions — Master and Servant — Death of Servant — Instructions—Assumption of Risk.</p> <p>In an action for the death of an employee struck by falling rock while he was descending a man-way in a mine, the evidence under every reasonable theory showed that the employer was negligent, and the court correctly charged as to the degree of care required, and properly submitted the issue of contributory negligence and assumption of risk. Held, that a charge that, if the employer knew, or by ordinary care could have known, that the way was unsafe because not properly timbered to prevent rocks from falling, he was liable, is not erroneous as assuming that the way was unsafe and not properly timbered, and that no timbering was proper unless it absolutely prevented rock from falling. — P. 310.</p>

Hon. Charles E. Southard, Judge. Jack O’Grady was convicted of keeping open Ms saloon and selling intoxicating liquors on Sunday, and he brings error. „

<p> Appeal from the District Court of the City and County of Denver. </p> <p> Hon. E. E. Armour, Judge. </p> <p>Action by Thomas P. Dillon, Jr., against The King Powder Company. Prom a judgment for plaintiff, defendant appeals.</p>

<p>1. Election of Remedies — Other Remedies Barred.</p> <p>An election once made with knowledge of the facts between coexisting remedial rights which are inconsistent is irrevocable and conclusive, irrespective of intent, and constitutes an absolute bar to any action, suit or proceeding based upon a remedial •right inconsistent with that asserted by the election. — P. 330.</p> <p>2. Same.</p> <p>A landlord, whose lease provides that he shall have a lien for his rent on all goods on the leased premises, by bringing an action and obtaining a decree that he was entitled to a lien on the goods, and that they should be sold under execution, makes an election to treat his contract as one of lien, so that he cannot abandon those proceedings and treat the matter as a chattel mortgage pure and simple, and take personal possession of the property to satisfy the lien, in the absence of a showing that the judgment was ineffectual, and that possession could not be secured by the sheriff under the execution. — P. 331.</p>

<p>1. Practice in Civil Actions — Negligence—Question of Fact or Law.</p> <p>Negligence or contributory negligence is, as a general rule, a question of fact for the jury, but may become a question of law for the court. — P. 335.</p> <p>2. Same.</p> <p>Whether negligence has been established is for the jury to determine under proper instructions, where the question is dependent on inferences to he drawn from acts and circumstances of that character that different intelligent minds may honestly reach different conclusions. — P. 336.</p> <p>3. Railroads — Street Cars — Actions for Injuries to Passenger— Question for Jury.</p> <p>In an action for injury to a street railway passenger due to another passenger so carrying a hoe that its handle caught under the hood of the forward car as it rocked up and down, and broke, hurling a piece back into the car, and striking him, the question of whether the conductor’s failure to cause the passenger to place his hoe on the floor of the car or to carry it in some other position was negligence, is one for the jury. — P. 336.</p> <p>4. Railroads — Street Cars — Protection of Passengers from Other Passengers.</p> <p>A common carrier is under the same strict obligation to protect a passenger from the negligence or willful misconduct of a fellow passenger that it is to carry him safely. — P. 338.</p> <p>.5. Same — Negligence—Question for the Jury.</p> <p>Where a street railway passenger so carried a hoe that its handle caught under the hood of the forward car as it rocked up and down, and broke, hurling a piece back into the car and striking another passenger, the test of negligence by the carrier is whether, in view of the condition of the roadbed, the position of the trucks, the rocking motion of the cars, and all the surrounding conditions, the conductor ought, as a reasonable man, to have anticipated or foreseen, as a natural and probable result of the way in which the passenger held the hoe, that this or'a similar accident would likely happen; and, in an action for the injuries so received, the evidence, under proper instructions, should be submitted to the jury to determine these questions of fact. — P. 340.</p>

<p>1. Witnesses — Competency—Privileged Communications — Physicians.</p> <p>Mills’ Ann. Stats, § 4824, provides that a physician and surgeon duly authorized to practice his profession under the laws of this state shall not, without the consent of his patient, be examined as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient. Held, that such provision does not apply to a physician practicing in another state and not authorized to practice under the laws of this state. — P. 349.</p> <p>2. Practice in Civi! Actions — New Trial — Newly Discovered Evidence — Discretion of Court.</p> <p>In passing upon a motion for a new trial on the grounds of newly discovered evidence, the trial court is vested with a large discretion in granting it, but it cannot be arbitrarily exercised; and, in reviewing such action, each case must be determined on its own facts, as there is no absolute criterion governing all such cases. — P. 350.</p> <p>3. Practice in Civil Actions — New Trial — Newly Discovered Evidence.</p> <p>As a general rule, in order to warrant granting a new trial on the ground of newly discovered evidence, the requirements are that it be such as will probably change the result if a new trial is granted; that it has 'been discovered since the trial; that it could not have been discovered before the trial by the exercise of due diligence; that it is material to an issue in the case; that it is not merely, cumulative to the former evidence; and that it does not merely tend to impeach or contradict the former evidence, except it may be in cases where it clearly appears that it would probably change the result in case of a new trial. — P. 350.</p> <p>4. Same — Sufficiency.</p> <p>In an action for personal injuries causing alleged, incapacity to labor, where the evidence was very conflicting as to plaintiff’s physical condition before and after the accident, it is 'error to deny a new trial on the ground of newly discovered evidence giving plaintiff’s ability to walk and do manual labor shortly after the verdict was rendered. — P. 351.</p>

Eon. Frank W. Oioers, Judge. Action by Patrick Murphy against Thomas Soden. While pending below, plaintiff died, and George F. Bnrtch, his administrator, was substituted in his stead, and while on appeal the administrator resigned, and Bridget Murphy, administratrix, was substituted. From a judgment for plaintiff, defendant brings error.

<p>1. Damages — Personal injury — Evidence — Physical Examination — Discretion of Court.</p> <p>There is no limitation in the constitution or statutes of Colorado to restrict the power of trial courts, in actions for personal injuries, to order a medical examination of plaintiff’s person by experts, hut a defendant has no absolute right to demand such an examination; the allowance of a motion therefor being subject to a review, and correction in case of abuse, on appeal.-— P. 363.</p> <p>2. Same — Application When Made — How, Order Carried Out.</p> <p>In actions for personal injuries whenever it fairly appears that the ends of justice require the disclosure or more certain ascertainment of important facts which can only be disclosed by the physical examination of plaintiff’s person, and the examination may be made without injury to plaintiff’s life or health, or the infliction of serious pain, such examination should he applied for and made before trial, and should be ordered and had under the direction and control of the trial court. — P. 364.</p> <p>3. Same — Failure to Submit to Examination — Penalty.</p> <p>In an action for personal injuries, an order of the court directing plaintiff to submit to a physical examination before the trial, may be enforced by staying or dismissing the action and not by punishment as for contempt. — P. 365.</p> <p>4. Damages — Personal Injuries — Motion for Physical Examination — Refusal Constituting Error.</p> <p>In an action for injuries alleged to be permanent, the evidence stated that plaintiff received no physical wound and no inconveniences at the time, but he continued to work for two days after the injury, and after two weeks consulted a physician, who, relying largely upon the statements of plaintiff and his mother, diagnosed the trouble as St. Vitus’s dance with partial paralysis, and after a month’s treatment apparently cured the trouble so that plaintiff assumed ,his ordinary occupation; and that about a year thereafter, and just prior to the trial, the same physician made an examination to prepare himself to testify, and stated that plaintiff was subject to recurring strokes of paralysis usually resulting from St. Vitus’s dance, and another physician .testified that a physical examination was necessary to determine whether plaintiff had completely recovered from the effects of the accident. Held, that an examination by medical experts would have either put plaintiff’s claim in this regard beyond question, or have destroyed it altogether, and, therefore the trial court erred in overruling defendant’s motion for such examination made before trial. — P. 365.</p>

<p>Husband and Wife — Torts Committed by Wife During Coverture — Liability of Husband.</p> <p>A husband is not liable for the tort of his wife, committed during coverture and without his presence, and in which he in no manner participated. — P. 375.</p>

<p>Fraternal Associations — Insurance—Mutual Benefit Insurance— Assets of Subordinate Lodge — Rights of Grand Lodge.</p> <p>A fraternal benefit society, organized on the lodge system to provide, inter alia, for death benefits, instituted a subordinate lodge, and the officers and members of the latter, which disbanded, divided its assets instead of delivering them to the grand lodge, as required by the constitution. Held, that such assets were held by the subordinate lodge and its officers in trust; .and, that the grand lodge can maintain an action against the officers of the subordinate lodge for the funds appropriated among themselves, and without bringing an action against the subordinate lodge, although incorporated, since the grand lodge has the right to follow the trust funds into the hands of such officers. — P. 399.</p>

Error to the County Court of Teller County. Hon. Thornton H. Thomas, Judge. H. M. Hamma was convicted for contempt of court, and brings error. Decision en banc, Mr. Justice Gabbert, Mr. Justice Goddard and Mr. Justice Bailey dissenting.

Eon. F. T. Johnson, Judge. Action by J. Kimball and William M. Chase against The Northern Colorado Irrigation Company, a corporation. From a judgment dismissing plaintiffs’ complaint and defendant’s cross-complaint, plaintiffs appeal.

<p>1. Water Rights — Nature of Rights — “Property”—Domestic Purposes — Eminent Domain.</p> <p>Rights to the use of water for a beneficial purpose, whatever the use may be, are property and protected by art. 2, § 15, Colo, const., providing that private property shall not be taken or damaged for public or private use without just compensation; and article 16, § 6, declaring that those using water for domestic purposes shall have preference over those using for any other purpose, does hot entitle one desiring to use water for domestic purposes to take it without compensation from another who has previously appropriated it for some other purpose. — P. 426.</p> <p>2. Water Rights — Cities and Towns — Right to Divert Water— Compensation — Statutory Construction.</p> <p>Mills’ Ann. Stats., § 4403, subd. 73, authorizing a town to take water from any stream or spring for domestic purposes, and providing that, when the taking shall materially interfere with the vested rights of any person, the town shall first obtain consent or acquire the right by condemnation, does not give the town the right to divert water for the use of its inhabitants superior to the right of an individual or a farming community to divert water for domestic or other purposes, in the sense that the town may take the water for that purpose, without compensation, from those who have previously appropriated it for the same or some other beneficial use. — P. 427.</p> <p>3. Water Rights — Persons Entitled to Divert Water.</p> <p>•The right to water appropriated for domestic purposes does not depend on the locus of its use for such purposes; but, in addition to towns and cities, it may be diverted by one not a riparian owner. — P. 427.</p> <p>4. Water Rights — Diversion — Beneficial Use — “Appropriation.” A diversion of water not applied to some beneficial use does not constitute an appropriation. — P. 428.</p> <p>5. Water Rights — 'Appropriations — Quieting Title — Pleading Complaint — Sufficiency.</p> <p>A complaint to quiet title to appropriations of water, claimed to have been made for domestic and irrigation purposes, should allege what volume of water diverted reaches the consumers under the ditch, how many consumers there are, the distance the water is carried, the area of land to which applied, when. applied, what volume is actually consumed for domestic and irrigation purposes, and when the ditch was completed; the rule being that in pleading an appropriation of water the acts constituting such appropriation must be stated, and not merely legal conclusions, so that upon inspecting such pleading it can be determined whether or not the facts stated constitute in law a valid appropriation. — P. 429.</p> <p>6. Water Rights' — Diligent Care — Preventing Waste.</p> <p>The law contemplates an economical use of water, and it will not countenance a diversion, which, on account of the loss resulting from the appliances used to convey it, is many times that actually consumed at the point where utilized; and an appropriator of water must, therefore, exercise a reasonable degree of care to prevent waste through seepage and evaporation in conveying it to the point where it is used. — P. 430.</p> <p>7. Water Rights — Quieting Title — Pleading — Complaint—Sufficiency.</p> <p>A complaint to quiet title to appropriations of water claimed to have been made for domestic and irrigation purposes, and to restrain a town from diverting the same for its use, need not allege that the town had not commenced proceedings to condemn the water, or had not acquired the right to appropriate the same by consent of the residents on the stream, since such facts are purely matters of defense. — P. 431.</p> <p>8. Water Rights — Quieting Title — Ditch Companies — Parties.</p> <p>A ditch company may maintain an action to protect the rights of the consumers of water through its ditch without joining such consumers as parties plaintiff. — P. 431.</p>

<p>1. Appellate Practice — Questions Reviewed — Oral Remarks of Trial Court — Reasons for Decision.</p> <p>Oral remarks made by the trial court at the time of rendering the judgment as to the reasons for the decision, although brought up in the bill of exceptions and abstract of record, will not be considered, as the appellate court is concerned only with the ultimate conclusions as expressed by the record, and not with the reasoning by which the court below arrived at its conclusion. — P. 436.</p> <p>2. Same — Dismissal—Grounds—Defect Supplied by Appellant.</p> <p>The insertion in the abstract, of oral remarks made by a trial court at the time of rendering the judgment complained of, instead of the court’s ultimate findings, is ground for dismissing the appeal if availed of in apt time, but where the omission is supplied by the appellee in a supplemental abstract filed by him, the cause will be determined upon its merits. — P. 437.</p> <p>3. Taxation — Notice of Tax Sale — Description of Property— Meaning of “To” — Words and Phrases.</p> <p>The description in a notice- of sale for taxes of the property as lots “1 to 24,” does not exclude lot 24 by reason of the use of the word “to,” as such word is not necessarily a term of exclusion, but one whose meaning is to be ascertained by the reason. and sense in which it is used; and, in this instance, it is used as a word of inclusion, since it follows the form of the statute. — P. 437.</p> <p>4. Taxation — Tax Sales — Description of Property — Sufficiency.</p> <p>The description of a parcel of land, in connection with tax sales, as a portion of an entire larger tract simply by number and block, without any reference to a map, is not sufficient prima facie to identify the portion assessed. — P. 439.</p> <p>5. Same — Oral Evidence — Sufficiency.</p> <p>Where the only evidence offered to overcome the prima facie insufficiency of the description of property in a notice of sale for taxes, was the testimony of an abstracter that he thought he could, from his knowledge, identify the tract by the description in the notice, and there was no evidence showing that it was well or generally known by the description in the notice of sale, such evidence is insufficient to overcome the prima facie insufficiency of the description. — P. 439.</p> <p>6. Taxation — Tax Sales — Description of Property — Sufficiency.</p> <p>Certain property sold for taxes was described on the tax roll as “Lots 1 to 24, Block 8, Fairground town”; in the publication notice as “Lots 1 to 24, Block 8, Fairground Range, Div. or Add.”; in the tax deed, “1 to 24, in Block 8, Fairground subdivision to the town of Montrose; that the land sold was known and recorded as “Fairground Plat,” in an action to quiet title against such tax deed. Held, that the description of the property in the notice of sale was prima facie insufficient to identify .the land. — P. 442.</p>

Hon. Jesse G. Northcutt, Judge. Action by David B. Nowles and Tbomas J. Saylor, doing business under the firm name and style of The Lamar Seed Company, against John W. Prowers. From a judgment for plaintiffs, defendant appeals.

Hon. Jas. L. Bussell, Judge. Action by the board of county commissioners of Teller county against Henry Trowbridge, district attorney of the Fourth Judicial District. From a judgment for defendant, plaintiff brings error, and defendant assigns cross-errors. Decision en bane, Mr. Justice Campbell and Mr. Justice Bailey dissent in part.

John H. Voorhees, Judge. Action by J. B. Barnes and Marion 0.

<p>1. Mortgages — Absolute Deed as Mortgage — Evidence as to Character — Admissibility.</p> <p>Plaintiffs, who were indebted to defendant, executed to him a deed absolute on its face, a separate writing being contemporaneously executed, providing that, if the land conveyed by the deed was sold within six months and brought more than a prior incumbrance and the amount of plaintiff’s debt, the surplus should be paid over to plaintiffs by defendant. Held, that under Mills’ Ann, Code, § 261, providing that the fact of a deed being a • mortgage in effect, may be proved by oral testimony, oral ■ evidence was admissible to show that the deed in effect was a mortgage, notwithstanding the contemporaneous written agreement. — P. 474.</p> <p>2. Same — Pleading—Construction.</p> <p>In an action to have a deed absolute on its face declared a mortgage and to redeem therefrom, the complaint alleged that, contemporaneously with the deed, an agreement was executed providing that if, within six months, the land was sold for more than plaintiffs’ debt, the surplus should be paid to plaintiffs, and set forth the prior transactions between the parties, including plaintiffs’ indebtedness to defendant, and the intention of the parties to make a new adjustment of it, and that the deed was delivered simply to secure payment of money due defendant ‘'by-reason of the transaction and circumstances above narrated.” Held, that oral evidence is admissible to show that the transaction was intended to be a mortgage, the phrase, “the transaction and circumstances above narrated,” not being restricted to the deed and written agreement, especially in view of the answer which denied that the deed was intended to operate solely as a mortgage, and alleged that it was made and delivered solely in accordance with the provisions of the accompanying agreement. —P. 478.</p>

Original Proceeding in Contempt. On Motion for Judgment on the Pleadings. Original proceeding in contempt by the people, on the relation of the Colorado Bar Association against Charles 0. Erbaugh. Motion by petitioner for judgment on the pleadings. Decision en banc.

<p>1. Alteration of Instruments — Materiality of Alteration — Effect.</p> <p>A complaint In an action, aided by attachment, averred that the amount claimed did not exceed $2,000, and the affidavit for attachment shoved on its face that the claim was for $414.18. Held, that an alteration of a statement in the affidavit that the claim was for a sum not exceeding “200 dollars” to “20 hundred,” was not ground for striking the affidavit and bond in attachment from the files, there being no competent proof to show that the alteration occurred after the affidavit was sworn to, and, further, the alteration being merely as to a jurisdictional fact, it was unnecessary in the affidavit. — P. 495.</p> <p>2. Attachment — For Purchase Price of Goods — No Time Fixed for Payment.</p> <p>Where an offer by wire to purchase potatoes at a certain price, if shipped on a certain day, was accepted by the seller, and the potatoes were loaded and delivered to the common carrier according to a requirement of the offer, the transaction was sufficient to sustain an attachment in an action for the purchase price on the ground that they were to be paid for on delivery, since in the absence of a specific agreement as to the time of payment it was a cash transaction. — P. 496.</p> <p>3. Sales — Terms of Sale In Absence of Agreement.</p> <p>In the absence of a specific agreement concerning the terms of sale, goods sold are to be paid for in cash on delivery, and to change this presumption, the purchaser must establish an agreement for credit. — P. 496.</p> <p>4. Sales — Delivery—Delivery to Carrier.</p> <p>In the absence of any agreement to the contrary, delivery of goods by a seller to a carrier is delivery to the consignee.— P. 497.</p> <p>5. Same — Carrier Selected by Seller.</p> <p>Where a seller undertakes to deliyer goods himself, at' the buyer’s place of business, and selects his own carrier, the carrier is usually regarded as the agent of the seller,' who thus assumes the risk of carriage. — P. 497.</p> <p>6. Sales — Delivery to Carrier — When Title Passes to Consignee.</p> <p>An offer by wire to purchase potatoes at a certain price, if shipped on. a certain day, was accepted by the seller, and the potatoes were delivered to the carrier on the day specified, a bill of lading received, and the purchaser notified at once of the shipment, together with a description of the car. Held, that the delivery of the potatoes to the carrier vested the title thereto in the consignee, and, for any default on the part of the company in delivering to him, a right of action arose in his favor, and not in favor of the consignor. — P. 497.</p> <p>7. Sales — Refusal to Accept — Action for Price — Evidence — Admissibility.</p> <p>In an action for the price of a carload of potatoes shipped to defendant, which he refused to accept because of the failure of the railroad to deliver as soon as he desired, evidence as to a custom that in such sales the buyer had the privilege at all times to inspect the potatoes before receiving them, and to. reject them if they were not according to the contract, was not admissible. — P. 498.</p>

Appeal from the District Court of Teller County. Hon. William P. Seeds, Judge. Action by A. J. Ellison against The Stratton Cripple Creek Mining and Development Company and its foreman Bradford. -From a judgment for plaintiff, defendant company appeals.

Hon James- 8. Hendrie, Judge. Action by A. J. Liebenberg against E. Yon Horrnm Schramm and the Farmers ’ Exchange. From a judgment for plaintiff in the county court on appeal from the justice’s court, defendants appeal.

Eon. Jesse G. Northcutt, Judge. Supplemental proceeding by petition of The Laguna Canal Coiiipany in an original statutory proceeding for the adjudication of water rights. The Rocky Ford Ditch Company filed a protest and answered, and from a decree adjudicating the priority of the canal company as of a certain date, the canal company appeals.

<p>1. Corporations — Directors —Fiduciary Relation — Voting on Salary.</p> <p>The relation of a director to the corporation which he represents in that capacity is fiduciary, and for this reason the law forbids him from making a contract in which his private interests may conflict with the interests of his principal, and hence a director who has been elected president of the corporation is disqualified from voting on a resolution purporting to fix his salary. — P. 531.</p> <p>2. Same — Majority of Directors Interested — Effect.</p> <p>It is essential that the majority of the quorum of a board of directors of a corporation must be disinterested with respect to the matter voted on in order to render it valid and binding on the corporation; and, where two of the three directors of a corporation are officers whose salaries are fixed in a single resolution, they cannot be counted in making a quorum to pass the resolution. — P. 532.</p> <p>3. Corporations — Officers—Right to Compensation for Usual Services.</p> <p>Neither the directors nor the president of a corporation are entitled to compensation for services in discharging their ordinary duties as such officers, unless it is legally provided for; and, where a resolution fixing the salary of the president of a corporation is not legally passed, there can be no recovery for services rendered as president, in the absence of pleading or evidence that such services were outside the ordinary duties of such officer; and the fact that the contract so attempted to be made is an executed one, does not preclude the company from questioning its validity. — P. 533.</p> <p>4. Corporations — Stockholders—Husband and Wife — Agency of Husband for Wife — Presumption of Authority.</p> <p>It will not be presumed that the husband of a stockholder in a corporation has authority to represent his wife in her absence. — P. 534.</p>

<p>1. Appellate Practice — No Objection Below — Effect.</p> <p>Even though a general denial was bad as not amounting to a denial at all, where at the trial the parties treated it as a good denial and introduced evidence thereunder without objection, its sufficiency cannot be raised for the first time on appeal. — P. 537.</p> <p>2. Appellate Practice — Verdict—Sufficiency of Evidence.</p> <p>Where the question was properly submitted to the jury as to whether an interlineation on the face of a judgment entered by a justice of the peace was made on the same day it was rendered or thereafter, the jury’s finding that it was made on the same day will not be disturbed on appeal, if there is legal evidence to sustain it. — P. 537.</p> <p>3. Appellate Practice — Finding-by Jury — Approval by Trial Court — Effect—Harmless Error.</p> <p>Where the trial court submitted to the jury the question of whether an interlineation on the face of a judgment entered by a justice of the peace was made on the day it was rendered or later, its approval of the jury’s finding obviated any error in submitting the question to the jury, even if such question was one for the court. — P. 537.</p> <p>4. Practice in Civil Actions — Questions for Jury — Conflict in Evidence.</p> <p>In an action to recover for property alleged to have been unlawfully levied upon under a judgment of a justice of the peace, the evidence being conflicting as to whether an interlineation in the judgment was made on the day it was rendered or later, such question was properly submitted to the jury. — P. 537.</p> <p>5. Execution- — Levy—Necessity of Exhibiting Authority.</p> <p>The failure of an officer to exhibit to the debtor his authority for levying an execution, although it may be better practice to do so, does not invalidate the levy, nor afford ground for excluding evidence of the execution under which a levy was made. — P. 538.</p> <p>6. Appellate Practice — Proper Objections Below — Waiver.</p> <p>The admission of an indorsement on a writ of execution to prove the appointment of a special constable was at first objected to, and afterwards admitted by consent; but counsel thereafter withdrew his consent, and, upon the trial court asking him if he objected to its admission, replied, “I just pass that by without saying anything.” Later counsel moved to strike the exhibit, but the court refused on the ground that it was introduced without objection. Held, that the question of the sufficiency of the indorsement of the special appointment will not be reviewed on appeal. — P. 538.</p> <p>7. Appellate Practice — Verdict—Approval of Trial Court — Effect.</p> <p>In an action to recover for property unlawfully taken under execution levied by a specially appointed constable, the question of whether or not at the time of the special appointment there was a qualified constable wijo could have been conveniently found in the township having been submitted to the jury, and a motion for a new trial later having been denied by the court, such finding will not be disturbed on appeal. — P. 539.</p> <p>8. Practice in Civil Actions — Conspiracy—Evidence—Admissibility.</p> <p>In an action to recover for property seized under an alleged unlawful conspiracy between the justice of the peace issuing the execution and the execution creditor, it may be shown that the judgment against the debtor in the justice court was for groceries sold to him, since such fact tends to show that the creditor was seeking in good faith to collect a just debt, and, therefore, tends to disprove a conspiracy. — P. 539.</p>

Error'to the District Court of Gunnison County. Hon Theron Stevens, Judge. Action by Eugene H. Howe against the town of Gnnnison, T. J. Thompson, its mayor; W. E. Clark, its treasurer; and C. E. Pennington, E. E. Mueller, P. C. Bowles, E. E. Harper, Geo. Mason and W. L. Richardson, its board of trustees. Prom a judgment for defendants, plaintiff brings error.